Due Process and the Non-Citizen: A Revolution Reconsidered


Joseph Landau

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In the pantheon of the Supreme Court's procedural due process jurisprudence, commentators typically describe Mathews v. Eldridge-the canonical case balancing governmental interests and individual rights-as a low point for individual liberty and a retreat from the high-water mark of Goldberg v. Kelly. But the due process revolution, and Mathews in particular, has dramatically affected the status of non-citizens in a number of immigration and national security cases. Mathews' transplantation to these areas has produced a body of decisions that are ushering in new rights protections and weakening doctrines of exceptionalism, for two reasons. First, Mathews requires an individuated inquiry into private interests that, when applied to cases involving the deportation, detention, and trials offoreign nationals, undermines the categorical inquiries into sovereignty, citizenship, and territoriality that defined more than a century of immigration and national security law. Second, Mathews often requires a judicial assessment of the merits of underlying policy, putting courts in the unique position of evaluating-and, at times, rejecting-congressional and administrative decisions that deny protections to foreign nationals. Courts engaging in due process balancing have begun to assert their own comparative expertise, and while the judiciary stillfrequently yields to government interests in these cases, the "Mathewsization " of immigration and national security has changed the judicial role with payoff for individual rights. Moreover, this payoff extends beyond the courts, for the coordinate branches, too, are experiencing a Mathewsization of sorts. In a world defined by fractious institutional power grabs, Mathews provides an unexpected mechanism for dialogue among coordinate institutions and a basis for inter-branch coordination.

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